Recently, a question has arisen among community association boards considering amendments to their governing documents. Some boards are interested in lowering the quorum requirement for member votes — a practical adjustment for communities facing low voter turnout.
However, there are instances where boards also contemplate a controversial change: counting a member’s failure to vote as a “yes” vote, both toward meeting quorum and in the final vote tally. This method could allow amendments to be approved with minimal actual participation from the membership.
Is it permissible for an association to amend its governing documents so that a failure to vote is counted as a “yes” vote?
In our opinion, such a provision — counting non-votes as affirmative votes — would not withstand a legal challenge. This practice undermines the intent of quorum and voting requirements, and courts are unlikely to uphold it. We strongly recommend that any association considering such a rule consult with their attorney. Relying on this kind of provision could expose the association to litigation, which it would likely not prevail in.
If your association is considering changes to its voting or quorum rules, it is very important to ensure those changes comply with both your governing documents and relevant laws. Please contact Mulcahy Law Firm, P.C. with questions.
